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Wayne’s World – What’s the difference?

Posted on November 18, 2014 by Maple Creek

A recent First Nations court case caught my attention. It is always interesting to follow court cases and note the decisions that judges render.

I find it intriguing because the legal system involves imperfect human beings making decisions about the lives of other individuals who are also less than perfect. The system itself is anything but ideal as individuals with big bank accounts can enlist the services of the best lawyers in the business. Meanwhile, individuals with little or no cash resort to using legal-aid services. Plea bargains (right or wrong) may be undertaken to expedite cases, reduce caseloads and court backlogs.

In the medical world such a system would be called unfair since it is a two-tier system that results in unequal treatment of patients as people with an abundance of funds are able to circumvent long waiting lists for medical tests and surgical procedures.

Getting back to our legal system, it is typically slow and frustrating because it can be abused and decisions can vary from one judge to the next. We should also consider what it is like to sit behind the bench and pronounce judgment on the actions of others based on minimal information. To make the task more difficult, there may be communication problems and conflicting statements by the parties involved and witnesses who are called to testify. Furthermore, we all view the world around us with our own personal biases since moral values differ from person to person. The job of remaining impartial and applying the law equally to all people goes to a judge who must sometimes explain in writing the verdict that was handed down.

I was reminded of all this by an Ontario court case in which a judge ruled against a request to detain a First Nations girl and force her to resume chemotherapy treatments. The request was made by the hospital that was treating the 11-year-old child. However, the judge did not agree and stated Aboriginal people have a legal right to use traditional native remedies. He based his decision on a section of the Constitution that recognizes existing native and treaty rights that are typically used in the context of hunting and fishing practices.

The judge went on to say the decision to replace chemotherapy with traditional medicine was based on the love of the child’s mother and a commitment to a cultural practice that is rooted in their Aboriginal culture. According to the judge, the use of traditional native medicines can be undertaken even though the treatments have not been proven to be effective by Western medical standards. In contrast, doctors estimate modern chemotherapy will give the girl a 90 per cent chance of being cured.

The court verdict that was handed down by Justice Gethin Edward seems to run contrary to earlier court decisions that forced medical procedures upon children when they or their parents objected to such treatment. Cases that immediately spring to mind involve Jehovah’s Witnessses.

In 2009, one such case involving a teenager who did not want to receive a blood transfusion was taken to the Supreme Court of Canada. The youth claimed that forcing such a medical procedure upon her was a violation of her religious beliefs. However, the court did not agree and noted keeping the best interests of the child at heart must be the overriding principle when deciding if a mature child under 16 has the right to make their own decisions regarding medical treatment. The Winnipeg girl at the heart of the case was almost 15 years old when she was apprehended by child welfare services who convinced a judge the youth was in immediate danger of death or serious injury. She was forced to receive a blood transfusion as treatment for a bleeding bowel.

The award-winning student compared the act to being raped and violated, yet the court dismissed her argument that the medical procedure violated her charter rights to religious freedom, equality, and life, liberty and security of the person. She claimed the authorities did not have the right or obligation to interfere and neither did her parents as she had the capacity and sufficient knowledge to make her own decision.

In 2002, a Calgary judge rejected most of a wrongful death lawsuit initiated by the father of a teenager who refused blood transfusions. He claimed the church, religious leaders and doctors deliberately misinformed his 17-year-old daughter about her medical treatment. As a result, she refused to accept blood transfusions for leukemia. However, the province won temporary custody and the girl was given 38 transfusions. She objected to the procedures and tried to pull the medical tubes from her arms before eventually dying.

According to advice on a legal website, consent to medical care in a medical emergency is not required in order to treat a child if the individual’s life or health is being seriously threatened. Furthermore, if the person is not capable of making healthcare decisions, medical practitioners may be able to treat the person without their consent since they are trying and save the child’s life or health.

However, medical personnel should not provide healthcare service to an adult if there is reasonable grounds to believe the adult previously indicated they wanted to refuse healthcare in a particular case—even a medical emergency.

The most recent case of the young Manitoba girl is intriguing for another reason. Her mother wants to pursue traditional medicine instead of chemotherapy, but apparently took her daughter to a private clinic in Florida. It is reportedly operated by a non-native business man who claims he can treat cancer, but is only licensed to provide massage.

I am all for people having a choice when it comes to pursuing medical treatment and the rules of engagement should be applied equally to everyone. What is the difference between the Aboriginal girl’s case and the Jehovah’s Witnesses situations?

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